[Cite as Marshand v. Ohio Dept. of Transp. , 2011-Ohio-5995.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

KAREN MARSHAND, et al., Case No. 2009-08730 

 Plaintiffs, 

 v. 

OHIO DEPT. OF TRANSPORTATION, Judge Joseph T. Clark 

 Defendant/Third-Party Plaintiff, 

 v. 

KOSKI CONSTRUCTION CO., 

 Third-Party Defendant. DECISION

{¶1} Plaintiffs brought this action against defendant/third-party plaintiff, Ohio 

Department of Transportation (ODOT), alleging negligence. ODOT subsequently filed a 

third-party claim of indemnity against third-party defendant, Koski Construction 

Company (Koski). The issues of liability and damages were bifurcated and the case 

proceeded to trial on the issue of liability. 

{¶2} This case arises out of damage sustained to the undercarriage of plaintiffs’ 

vehicle, a 1989 Chevrolet Corvette, when plaintiff, Karen Marshand, entered U.S. Route 

20 from the driveway of her son’s home in Ashtabula County on August 29, 2009. At 

the time of the incident, this portion of U.S. Route 20 was being resurfaced by Koski 

pursuant to a contract with ODOT. As part of the resurfacing process, Koski had milled 

down the old pavement on portions of the roadway, including the area adjacent to the 

driveway in question. 

{¶3} Karen Marshand testified that she drove to her son’s home to pick up her 

grandson and that she had no difficulty entering the driveway from U.S. Route 20. Both 
Case No. 2009-08730 - 2 - JUDGMENT ENTRY

Karen and her husband, plaintiff Leonard Marshand, who was not present when the 

incident occurred, testified that because U.S. Route 20 is a busy four-lane highway, 

their normal practice when leaving their son’s home is to turn around on the large 

asphalt apron at the foot of the driveway in order to avoid backing directly onto the 

highway. The eastern end of the apron is where the driveway is located, while the 

western end of the apron extends far beyond the driveway and serves as a turnaround. 

However, Karen stated that when she turned the car around that day, she had little 

room to maneuver due to two of her son’s cars being parked near the driveway apron, 

and she therefore entered the highway from the western end of the apron rather than 

the eastern end where she had exited. Karen, who admitted both that she was aware of 

the resurfacing project and that she could not see the surface of the highway from her 

vantage point on the apron, testified that when the vehicle crossed the curb separating 

the apron from the roadway, the undercarriage of the vehicle scraped the curb and 

sustained damage. 

{¶4} Leonard Marshand testified that he inspected the site of the incident soon 

after it occurred and observed that a portion of the milled surface alongside the curb 

had been filled with crushed asphalt, but that such material did not extend to the 

western end of the curb cut. Leonard stated that the vehicle came into contact with a 

portion of the curb near a drainage grate where no crushed asphalt had been placed, 

and he estimated that the difference in elevation between the curb and milled surface at 

that area was four inches. Leonard admitted, however, that the elevation of the 

driveway apron also sloped at a descending angle from the roadway. Leonard also 

acknowledged that the undercarriage of the vehicle sat low to the ground, but he stated 

that the car had not been modified from its factory condition. 

{¶5} Larry Obhof testified that he is a transportation engineer for ODOT, with 

whom he has been employed for 37 years. Obhof stated that he supervised the project 

for ODOT and visited the project site daily, and that another ODOT employee was 
Case No. 2009-08730 - 2 - JUDGMENT ENTRY

stationed at the project site at all times to monitor the milling and paving. Obhof stated 

that after receiving a complaint concerning plaintiffs’ vehicle, he arranged to inspect the 

site with Matthew Hockran, a Koski employee. Obhof related that when he inspected 

the site, he found that Koski had deposited crushed asphalt along a portion of the curb 

cut, but that the difference in elevation between the curb and the milled surface was 

slight enough that the entire length of the driveway apron was sufficiently accessible. 

According to Obhof, ODOT generally does not require that paving contractors fill the 

milled areas adjacent to curb cuts, and he found that Koski’s work complied with the 

project specifications. 

{¶6} Matthew Hockran testified that he has been employed by Koski for 21 years 

and that he managed the project, which involved milling about two inches of pavement 

and resurfacing an eight-mile portion of the highway. According to Hockran, after 

milling was performed, Koski placed either crushed asphalt or a cold asphalt patch at 

the edges of curb cuts as needed in order to facilitate ingress and egress. Hockran 

stated, though, that when unusually long curb cuts were encountered, Koski generally 

placed these materials only along such portions of the curb cut as needed in order to 

maintain sufficient access. Hockran related that the curb cut in question was unusually 

long for a residential driveway, being approximately 60 feet long, and that Koski placed 

crushed asphalt along 15-20 feet of the eastern end of the curb cut, where the actual 

driveway to the home was located. Although the evidence adduced at trial did not 

establish when this area was milled, Hockran stated that the entire project lasted six to 

seven weeks. 

{¶7} Hockran testified that he took photographs when he inspected the site with 

Obhof, and the court notes that these photographs show that the difference in elevation 

between the curb and the milled roadway surface was approximately three inches, 

notwithstanding any crushed asphalt deposited by Koski. (Third-Party Defendant’s 

Exhibit B.) Hockran’s photographs also show that the driveway apron that spanned the 
Case No. 2009-08730 - 2 - JUDGMENT ENTRY

length of the curb cut descended significantly from the curb, such that plaintiffs’ vehicle 

needed to travel uphill on the uneven apron surface to enter the road. (Third-Party 

Defendant’s Exhibits D, E.) 

{¶8} In order for plaintiffs to prevail upon their claim of negligence, they must 

prove by a preponderance of the evidence that ODOT owed them a duty, that ODOT’s 

acts or omissions resulted in a breach of that duty, and that the breach proximately 

caused them injury. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81, 2003-Ohio2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. 

Although ODOT is not an insurer of the safety of the state’s highways, ODOT has a 

general duty to maintain and repair state highways such that they are free from 

unreasonable risk of harm to the motoring public, and this duty is owed both under 

normal traffic conditions and during highway construction projects. Roadway Express, 

Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. No. 00AP-1119. However, 

“ODOT cannot guarantee the same level of safety during a highway construction project 

as it can under normal traffic conditions * * * [and the] court must look at the totality of 

the circumstances in determining whether ODOT’s actions were sufficient to render the 

highway reasonably safe for the traveling public during the construction project.” Id. 

(Internal citation omitted.) 

{¶9} Additionally, the common law of Ohio imposes a duty of reasonable care 

upon motorists, which includes the responsibility to observe the environment in which 

one is driving. Hubner v. Sigall (1988), 47 Ohio App.3d 15, 17. 

{¶10} Upon review, the court concludes that the condition of the highway did not 

present an unreasonable risk of harm. The evidence presented at trial establishes that 

approximately two inches of pavement was milled from the roadway, resulting in an 

approximately three-inch difference in the elevation of the curb and roadway, and the 

elevation change was mitigated by placement of crushed asphalt alongside a 15-20 foot 

section of the eastern half of the curb cut. The court finds that reasonable access was 
Case No. 2009-08730 - 2 - JUDGMENT ENTRY

maintained to the driveway via the eastern end of the curb cut, and that the lack of 

crushed asphalt at the western end of the curb cut was reasonable under the 

circumstances, particularly insofar as the conditions were temporary, the difference in 

elevation between the road surface and curb was approximately three inches, and the 

adjacent apron area served as a turnaround rather than an access point for the 

driveway. 

{¶11} Moreover, even if the failure to place crushed asphalt along the entire 

length of the curb cut did create an unreasonable risk of harm, the court finds that any 

negligence on the part of ODOT was outweighed by the driver’s negligence in 

approaching the highway in a vehicle with low ground clearance on an uneven and 

steeply sloped driveway, at an angle that prevented her from seeing the surface of the 

highway, and then blindly driving over a section of the curb where no crushed asphalt 

had been placed. 

{¶12} For the foregoing reasons, the court finds that plaintiffs have failed to prove 

their claim of negligence by a preponderance of the evidence. Consequently, ODOT’s 

indemnity claim against Koski is moot. Accordingly, judgment shall be rendered in favor 

of ODOT as to plaintiffs’ claim, and judgment shall be rendered in favor of Koski as to 

ODOT’s third-party claim. 

 

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 
Case No. 2009-08730 - 2 - JUDGMENT ENTRY

www.cco.state.oh.us 

KAREN MARSHAND, et al., Case No. 2009-08730 

 Plaintiffs 

 v. 

OHIO DEPT. OF TRANSPORTATION, Judge Joseph T. Clark 

 Defendant/Third-Party Plaintiff, 

 v. 

KOSKI CONSTRUCTION CO., 

 Third-Party Defendant. JUDGMENT ENTRY

{¶13} This case was tried to the court on the issue of liability. The court has 

considered the evidence and, for the reasons set forth in the decision filed concurrently 

herewith, judgment is rendered in favor of ODOT as to plaintiffs’ claim, and judgment is 

rendered in favor of Koski as to ODOT’s third-party claim. Court costs are assessed 

against plaintiff. The clerk shall serve upon all parties notice of this judgment and its 

date of entry upon the journal. 

 _____________________________________ 

 JOSEPH T. CLARK 

 Judge 

cc: 

 
Case No. 2009-08730 - 2 - JUDGMENT ENTRY

Cari F. Evans 

4505 Stephen Circle, N.W., Suite 100 

Canton, Ohio 44718 

Mark R. Wilson 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Karen Marshand 

Leonard Marshand 

3800 East Center Street 

Conneaut, Ohio 44030 

Filed October 21, 2011 

To S.C. reporter November 18, 2011